Santiago v. Pioneer Transportation Corp. — 157 A.D.3d 451

Majority

p. 451

Victor Manuel Santiago, Respondent, v Pioneer Transportation Corp. et al., Appellants.

[66 NYS3d 133]

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered March 4, 2016, which, inter alia, granted plaintiff’s motion for summary judgment as to liability, unanimously reversed, on the law, without costs, and the motion denied.

On January 21, 2014, a school bus owned and operated by defendants collided with the rear of a truck plaintiff claimed, by affidavit, that he was driving. In contrast, the defendant bus driver averred that plaintiff was not the truck driver based on his observance of that driver’s appearance, which contrasted with photographs of plaintiff, which defendant viewed. Thus, the court erred in granting plaintiff’s motion for summary judgment because, “viewed ‘in the light most favorable to the non-moving party,’ ” defendants raised an issue of fact as to the identity of the other driver (Vega v Restani Constr. Corp., 18

p. 452

NY3d 499 , 503 [2012]). “[W]hether a particular defendant owes a duty to a particular plaintiff is a question of fact” for the jury (Kimmell v Schaefer, 89 NY2d 257 , 263 [1996]). The bus driver’s affidavit was not impermissibly self-serving as having contradicted any of his prior testimony (cf. Caraballo v Kingsbridge Apt. Corp., 59 AD3d 270 [1st Dept 2009]). It is for the jury to resolve issues of credibility as between the conflicting affidavits of the parties concerning the identity of the truck driver (see Ocean v Hossain, 127 AD3d 402 , 403 [1st Dept 2015]; Agli v Turner Constr. Co., 237 AD2d 173 , 174 [1st Dept 1997]).

Concur—Renwick, J.R, Manzanet-Daniels, Gische, Kahn and Singh, JJ.

Cases cited

Kimmell v. Schaefer 89 NY2d 257 N.Y. 1996-11-26 at 263 p. 452
Caraballo v. Kingsbridge Apt. Corp. 59 AD3d 270 N.Y. App. Div. 2009-02-19 p. 452
Ocean v. Hossain 127 AD3d 402 N.Y. App. Div. 2015-04-02 at 403 p. 452